Evercare already counting on Abercrombie signing SB 1274

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Evercare is apparently assuming Governor Abercrombie will be signing SB 1274 into law, as the company has already started announcing slashes in services to begin July 1.

If SB 1274 is signed by Governor Abercrombie, July 1 is the date that everyone on Medicaid loses the right to any sort of independent review of their insurance provider's medical decisions.

Evercare is also involved in two federal civil rights violation investigations opened in Hawaii in the past few weeks. Both investigations are into allegations Medicaid cuts in home nursing services are violating the civil rights of medically fragile children.

It is not an issue of the money not being available.  Unitedhealth typically spends only eighty cents out of every dollar they receive, regardless of whether the bill is paid by an individual, an employer, or the federal government.  The company is paid with federal funds to provide the extraordinary level of care that medically fragile children need in order to stay home with their families. It is the company's decision then, not to spend the money, even if it means ignoring all the children's doctors.

How much of this child abuse is due to the irony that Evercare and Ohana are paid more by the feds every month if two little girls are institutionalized than if they stay home, I do not know.  It is certainly a nice inducement for the company to cut home hours to the point the child's safety is endangered.

Both Unitedhealth and Wellcare seem to lead all Medicaid managed carecontractors in violations, over billing, and billing irregularities adding up to unsavory reputations.  Wellcare filed with the SEC in April their Medicaid fraud settlement with nine states, and both companies have been accused of stealing from
children's Medicaid funding in Florida.  New indictments of Wellcare's founding board and executives have been handed down recently and that does not appear to be the end of it.

UnitedHealth under federal scrutiny in Hawaii over possible Medicare scam

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I reported on January 23 that a Kauai family claimed to have been duped by an employee of UnitedHealth into changing to the company's Medicare plan.

By February 8, federal Medicaid regulators from CMS were involved in the investigation.

This is only the latest in a long line of federal formal and informal audits, oversight and investigations plaguing Hawaii's Medicaid program since the fall of 2009.  In addition to CMS, the DHHS Office for Civil Rights, the FBI/DOJ and even the federal Office for Civil Rights of the Department of Education have all been involved.

I could understand why Lingle and Koller kept all this from the public.  They had built here in Hawaii a perfect Republican dream of how Medicaid should function under privatization, and small problems like deaths, let alone violations of federal laws, were just pesky details.

But where does our new Democratic governor stand with all this?  He seemed to promise an end to privatized Medicaid, but now is letting privatized Medicaid draft state legislation.

Meanwhile, life and death decisions continue to be made daily by people motivated more by profit than medical need.  

Governor Abercrombie, respectfully, you need to step in and put a stop to this before anyone else can be hurt.  Only you and the Feds can do that right now.  And you need to come clean with your voters about the state's dirty laundry and what you're going to do to wash it.

Feds Acknowledge Civil Rights Status of "Medical Necessity" for Children with Disabilities

Letters issued by the federal DHHS Office for Civil Rights to two Hawaii mothers acknowledge children with disabilities have a civil right to medical services that are "virtually unlimited in terms of funding ...  as long as services are medically necessary."

In both cases, OCR gave priority to the children's treating physicians' recommendations for "medical necessity" over those imposed by state or private Medicaid providers.  This action is in keeping with three federal court decisions made late last year, all of which ruled state Medicaid officials or private providers could not deny or limit what a child's treating practitioner said was "medically necessary."

The letters were in response to complaints filed with OCR by the mothers about nine months ago, alleging that threatened cuts in home skilled nursing services violated their daughters' civil rights under EPSDT.  In December, OCR acknowledged that the office's oversight of Olmstead violations extended to rights under EPSDT.  In February, the office opened formal investigations into both girls' cases.

The letters were formal notifications the cases are being closed at this time.  Federal regulators from the Center for Medicare and Medicaid Services have apparently assured OCR that both girls are currently receiving 24/7 skilled nursing from a combination of sources, and therefore at this time the girls are not at risk of institutionalization. 

OCR investigates "covered entities" which can include a state developmental disability program, but not the privately owned, for profit insurance companies also responsible for providing services. However both letters quote CMS stipulating an apparently agreed-upon service coverage by UnitedHealth, the particular company providing Medicaid services to both girls.

Should this situation change for either girl, OCR can immediately re-open the cases.

As of April 30, 2010, both girls are covered by a new federal definition of medically frail children.  42 CFR 440.315(f) states:  

" ...the State's definition of individuals who are medically frail or otherwise have special medical needs must at least include those individuals described in §438.50(d)(3) of this chapter, children with serious emotional disturbances, individuals with disabling mental disorders, individuals with serious and complex medical conditions, and individuals with physical and/or mental disabilities that significantly impair their ability to perform one or more activities of daily living."

 Since one of the two girls is my own daughter, I am publishing the letter we received from OCR.

National disability fellowship awarded to Hawaii doctor linked to federal investigations into Olmstead violations

The Honolulu pediatrician who has received a prestigious Kennedy Foundation Fellowship has links to two on-going Federal inquiries into whether cuts in home services provided to people with disabilities violate the Americans with Disabilities Act.

Dr. Jeffrey Okamoto has been the Medical Director of Hawaii's Developmental Disability Division of the Department of Health.  In December 2008, the Division announced an across-the board fifteen percent cut in home services for people with developmental disabilities.

Federal Medicaid regulators from CMS have been flying into Honolulu regularly since last fall, meeting with state officials to discuss the appropriateness of these cuts.  Discussions and personal meetings have expanded in scope.  I was asked by CMS to provide additional evidence as recently as last month.

In February, the Office for Civil Rights of DHHS opened their own formal investigation into whether the Developmental Disability Division's across-the-board service cuts violate the Americans with Disabilities Act.

Dr. Okamoto intervened directly in my daughter's formal Department of Health appeal against the 15% cut in her nursing services, testifying unexpectedly at the hearing.  Because of that involvement, I have written testimony from Dr. Okamoto that I am willing to share with the public, even though it contains private medical information about my daughter.

He disputed Hannah's neurologist's evaluation and prescription for 24/7 skilled nursing in the home.  In written testimony presented to the Hearing Officer, Okamoto wrote: 

24/7 nursing as being requested by Dr. Griffiths should indicate that Hannah is not safe at home.  This even exceeds the hospital level of nursing provided.  If Hannah is safe at home, then 24/7 nursing should not be necessary.

The written decision of the Department of Health Hearing Officer rejected explicitly all of Dr. Okamoto's arguments.  This included Dr. Okamoto's attempt to link parental training to whether or not a child is safe living at home.

In spite of that written decision, Dr. Okamoto's concept that the safety of a disabled person in their home can be linked to the level of parental training has been expanded upon.  Honolulu civil rights attorney Rafael Del Castillo says he has seen the issue brought up in at least one other case, but by the Department of Human Services.

Earlier today I reported that these threats are being made to families even now, but by representatives from the two for-profit insurance companies that operate Hawaii Medicaid's special programs for people with disabilities.

These issues and complaints remain outstanding. 

The Joseph P. Kennedy Jr. Foundation, which has awarded Okamoto a Public Policy Fellowship, is devoted to furthering the rights of people with disabilities.  One has to wonder if anybody bothered to tell them that Hawaii's entire program of home and community services for the disabled is under a combination of formal, informal and criminal investigations by CMS, OCR and DOJ?

Arkansas becomes eighth state where feds intervene over Medicaid service cuts

On May 6, the U.S. Department of Justice filed a lawsuit "alleging that the state of Arkansas is systemically violating the Americans with Disabilities Act of 1990 (ADA)."

This brings now to eight the number of states I've been able to identify where federal authorities have had to intervene directly to stop violations of the civil rights of Americans with disabilities.   All the violations are in conjunction with state Medicaid cuts in the type of home medical services that enable children as well as adults with disabilities to live at home rather than in institutions.

In February, Hawaii became the seventh state when the DHHS Office for Civil Rights opened two separate investigations into whether Hawaii Medicaid cuts were violating the ADA.  The state has been in discussions with CMS since last July over these same cuts.

How many states does it take before the DOJ steps in nationwide to stop these abuses?  I reported back in February that lawsuits alleging similar civil rights violations had been filed, heard or decided in at least seventeen states in the previous year.

Moreover, how long was the Justice Department investigating the state of Arkansas?  Was any moratorium placed on Medicaid decision-making that could have violated the rights of Arkansas individuals with disabilities while the investigation was going on?  What if children and adults with disabilities are dying while these investigations are going on, not just in Arkansas, but also in Hawaii and the other sixteen states?

Feds Probe Civil Rights Violations in Hawaii

This is a story about how four moms and a dad are changing perceptions of the civil rights of children with disabilities.

Late last week it was learned that the Office for Civil Rights of the US Department of Health & Human Services is opening official investigations into complaints that the state of Hawaii is violating the civil rights of people with disabilities.

The complaints were filed by four Hawaii parents of medically fragile children, and the mom of a young quadriplegic man.

The civil rights violations that are being investigated

The violations stem from civil rights granted through a Supreme Court decision in 1999.  What's become known as the Olmstead Decision ruled people with disabilities had a civil right to receive the medical services that enabled them to stay at home, rather than being segregated into institutions.  These services are provided through state Medicaid health care plans.

This latest investigation mounted by the OCR may be the first to recognize that children with disabilities have a second, inalienable right to medically necessary treatments and services that state bureaucrats cannot deny, limit or reduce.

For years, these treatments and services have been denied, limited and reduced by state bureaucrats and the for-profit private insurance companies that are winning state Medicaid and Medicare contracts across the country.

With the recession, bureaucrats and insurance companies have been looking for ways to save money without people noticing.  The families and caregivers for children and adults with disabilities have been an easy target.  Usually they are just too exhausted to complain.  They are also extremely vulnerable to coercion (such as 'don't ask for so many hours of help or we'll throw your kid in an institution').

We (and I'm one of those moms) are a small population, but cuts to the Medicaid home services that enable our children to live at home with us can give a for-profit company or state a big bang for the buck.  Here in Hawaii, for instance, the 5,663 people receiving home nursing and caregiving services through Medicaid cost the state $120.8 million in 2005 (the most recent year I have both sets of figures).  Our kids are expensive to keep at home, but the alternative is locking them away in big cages (safety beds) in institutions.  The higher risk of death in an institution or without proper home care is acceptable, as state employees and insurance company gatekeepers frequently tell us.

We have all been told, in one way or another, that it wasn't cost-effective for the state to pay to protect our children's lives.

The problem is national in scope

Back on June 29, 2009, the Center on Budget and Policy Priorities reported "at least 39 states have made cuts that harm vulnerable residents to help close budget gaps."


In line with OCR's decision to investigate Hawaii's Medicaid cuts as civil rights violations, the similar cuts in all thirty-nine (at least) states may now constitute civil rights violations.


Hawaii is at least the seventh state in the past year where Federal regulators have intervened on behalf of children and adults with disabilities.  The Department of Justice stepped in to a federal courtroom in North Carolina, Kentucky is under investigation by the OCR, and federal Medicaid regulators (CMS, or the Centers for Medicare and Medicaid Services) have intervened in Idaho, Colorado, Alaska, Tennessee and Hawaii.  


Class action and private lawsuits alleging similar civil rights violations are pending, have been filed or have been decided in at least fifteen states in the past year:  Arizona, California, Colorado, Georgia, Hawaii, Idaho, Illinois, Kentucky, New Jersey, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee and Washington.  


Federal judges in only two states, Hawaii and South Carolina, have decided that potential cuts in services didn't matter since no harm had yet been done. The Department of Justice physically intervened in a similar court case in North Carolina, to ensure that potential cuts were put on hold.


Two federal cases in Georgia have decided that state officials and Medicaid contractors cannot over-rule a prescription from the doctor of a disabled child on Medicaid.  They have a potential financial conflict of interest with the medical needs of the child, and are also prohibited by federal Medicaid regulations from providing case management services to kids as well as adults with disabilities.


In a June 30, 2009 filing in the Federal Register, CMS clearly recognized the potential conflict of interest between state Medicaid gatekeepers and the actual needs of individual children and adults with special health care needs.  Six weeks later, CMS gave the state of Idaho written instructions prohibiting the state  and its Medicaid contractors from denying, limiting or reducing treatments and services prescribed for children with disabilities.  They can review them to ensure they are not fraudulent, but not change them otherwise. 

Meanwhile, back in Hawaii

As mentioned earlier, Hawaii is one of two states where federal judges have been completely unsympathetic to the civil rights of people, particularly children, with disabilities.

This blog has been describing parts of the battle families have been waging here in Hawaii over the past year.

Blocked from judicial relief, in July 2009 I filed a complaint with OCR on behalf of my ten year old daughter Hannah.  There was nowhere to go except up.

Since 2002, I've been waging private battles with the state over Hannah receiving the medical care and educational services she's entitled to under federal Medicaid law.  My daughter's brain damage from birth was so severe her head is still only the size of a six month old infant's, but she has had to have her own lawyers since she was three.

Last year I decided to take my fight on my daughter's behalf public, and help other families in similar situations.  The stories are horrendous, but until now very private of the four families I helped file complaints with the OCR over the past six months.

Four of us have children who are medically fragile.  They can't take food by mouth but instead get liquid diets through tubes in their stomachs.  Two need machines to help them breathe.  Three have life-threatening seizures that cannot be controlled and can erupt without a second's notice.  My daughter is the oldest, the youngest is almost four.

Two of us have had the state of Hawaii threaten us with institutionalizing our children if we didn't back down.  Two more received similar threats from the two for-profit insurance companies who hold the contract for Hawaii's Medicaid home and community based services.

Our fifth family is that of a 21 year old who broke his neck in an accident.  His mind is fine, but he can't turn himself over in bed, feed himself, or even go to the bathroom himself.  Medicaid says he should be fine staying home all day alone, just hoping nothing happens that he would need to be moved.

It's fairly mortifying as a parent to be told your child's well-being, and very life, aren't worth, say, any more than $6,000 per month.  To an outsider that may seem like a lot, but children like my daughter require 24/7 skilled line-of-sight nursing in order to remain in their homes.

Without it, Hannah would have to be shut into a giant crib with three foot high walls of metal bars, and a roof to match.  She's too mobile to be left alone, and an institution doesn't have the staff to watch her all the time.

Instead, it costs about $30,000 a month to keep Hannah at home.  Right now, at least two-thirds of that is being paid by the federal government.

That $30,000 goes completely into local job creation.  The ARC of Hawaii estimated back in 2003 that for every $10 million the state cut from it's Medicaid budget, it lost over $21 million in employment, services and taxes.

In 2008, Hawaii paid out about $167.5 million to provide home nursing and care services for medically needy children and adults.  At that time, the state's share was about 45%, or $67 million.

As of mid-January, Hawaii had received about $184 million in federal stimulus funds that could only be spent on Medicaid.  Presumably, about eight percent of that is going straight off the top to the two for-profit insurance companies that have state contracts to provide services to the medically needy community.

One of those two companies is UnitedHealth Group.  According to their third quarter 2009 financial releases, fifty percent of the company's total income derives from the twenty percent of its enrollees who are covered through state contracts to provide Medicaid and Medicare services.

UnitedHealth's net earnings in third quarter 2009 were up over 13% from the previous year, to $1.04 billion.

Why does a company that clears $4 billion a year have the right to decide how much a child's life is worth?

Feds Investigating Kentucky medicaid home services cuts as civil rights violation

A Kentucky newspaper reported yesterday (June 27) that the US Department for Human Services Office for Civil Rights is investigating Kentucky for federal civil rights violations incurred by cutting home based medicaid services for people with disabilities. Since I started this blog five months ago, I've been able to identify five states being sued for potential Olmstead civil rights violations. I've also found and linked to news articles from eleven more states that are slashing their budgets for home and community support services through Medicaid. Now that the Federal Office for Civil Rights has made this a federal issue, the time has come for the feds to step in and take action at a national level. Sixteen states are all targeting the very weakest group in our society -- children with disabilities. The Olmstead Act gave these children, whether under 21 or as adults, the fundamental civil right to live with their families, by using medicaid to provide the home based services necessary to prevent institutionalization. It's a Federal Supreme Court decision, the laws are federal, and the Office for Civil Rights is federal. And all of these states are presumably receiving significant additional federal matching funds for their medicaid programs through Section 5001 of the American Recovery Act. According to the ARRA website, these 16 states have already received FMAP grants totaling about $2.5 billion dollars. If the federal government deems it a civil rights violation in one state, then it only follows that cutting home based services for children with disabilities is a civil rights violation in the other fourteen states. According to the Office for Civil Rights website, 62% of the 561 Olmstead Act related investigations they performed between April 2000 and May 2009 required "corrective action." I filed a complaint on behalf of my daughter with the DHS Office of Civil Rights last January, but because of the federal suit being brought against the state of Hawaii, I couldn't follow up. I'm refiling today. Maybe if we all filed emails with the Office for Civil Rights, they would take notice how widespread the problem is and put a halt to this unconscionable discrimination against our children with disabilities. Here's where the Office of Civil Rights discusses disability rights. And here's the page with information about how to file a complaint with the Office for Civil Rights. You can do it by email, or filling out their online form. Maybe this is our chance to get this discrimination stopped once and for all.